If, let us suppose, the United States government could not constitutionally pass a law banning Trump from using Twitter or Facebook, why should Twitter and Facebook be allowed to do so? Even if they are private enterprises and not the government, they have enormous power and influence over public discourse in our nation. Should they have unlimited authority to decide for themselves who can and cannot share their views with other Americans on these extraordinarily powerful means of communication? Can they — should they — be trusted to have such authority to determine the bounds of public discourse in our democracy?

Our nation faced a somewhat similar question with the advent of radio in the 1920s. At that time, with only a small number of frequencies available in any location, the fear was that a small number of wealthy individuals could buy up all the frequencies in a city such as Chicago and completely dominate this powerful new means of communication and then distort and corrupt our democracy.

With that concern in mind, Congress enacted the Communications Act of 1934, which established the Federal Communications Commission and granted it broad power to regulate the broadcast spectrum. The FCC then adopted the Fairness Doctrine, which imposed on radio and television broadcasters the requirement that discussion of public issues be presented in a fair and balanced manner.

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